Arapahoe County District Court No. 11CR1851. Honorable F.
Stephen Collins, Judge.
J. Weiser, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy
State Public Defender, Denver, Colorado, for
and J. Jones, JJ., concur.
Defendant, Charles Marcus Hamm, appeals the district
court's denial of his request for an evidentiary hearing
on his petition for postconviction relief (the Petition).
Hamm contends that his trial counsel was ineffective by not
advising him that the penalty reductions enacted through the
Uniform Controlled Substances Act of 2013 (the Act) apply
retroactively and, therefore, require a reduction in his
sentence. He also contends that the district court erred in
denying him an evidentiary hearing on his challenge to the
voluntariness of his stipulation (the Stipulation) to a
thirty-year prison sentence.
[¶2] We hold that, under section
18-1-410(1)(f)(II), C.R.S. 2018, and Crim. P.
35(c)(1), Hamm's failure to file a direct appeal
precludes him from seeking postconviction review of his
sentence based on a " significant change in the
law." Further, we hold that the trial court did not err
in denying Hamm an evidentiary hearing because the Act does
not apply retroactively and thus cannot reduce Hamm's
Hamm's Conviction and Postconviction Motions
[¶3] Hamm was charged with one count of
distribution of a controlled substance (3.4 grams of cocaine)
in September 2011 and five habitual criminal counts based on
his prior felony convictions. A jury convicted him on the
[¶4] The district court continued the trial on the
habitual counts while the defense and the People negotiated
an agreement on Hamm's sentence. In exchange for
dismissal of the habitual counts, Hamm stipulated to a
sentence of thirty years in the custody of the Department of
Corrections and five years of parole to avoid a mandatory
sentence of sixty-four years.
[¶5] Hamm filed a pro se motion in the
district court to extend the deadline for an appeal. The
court denied the motion because he had filed it in the wrong
court. Hamm did not directly appeal his conviction or his
[¶6] Hamm filed the Petition more than one
year later. For purposes of this appeal, he argued in the
Petition that his trial counsel had been ineffective by
failing to advise him that the General Assembly had recently
passed the Act and that the penalty reductions reflected in
the Act applied retroactively. Hamm argued that, if the Act
had been applied to him, he would have faced a maximum
sentence of sixteen years. He also argued that he should be
permitted to withdraw the Stipulation because he had entered
into it without knowledge of the Act and, further, had agreed
to the thirty-year sentence equivocally. He asked the
district court to conduct an evidentiary hearing on the
[¶7] The district court denied the Petition
after determining that the Act did not apply retroactively.
The court held that Hamm's ineffective assistance claim
failed because his trial counsel would have been misstating
the law if he had advised Hamm that the Act applied
retroactively. The court further found that the Stipulation
was enforceable because Hamm had entered into it freely,
knowingly, and voluntarily. In light of its findings, the
district court declined to conduct an evidentiary hearing on
Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) Bar
Hamm's Ineffective Assistance Claim
[¶8] We resolve Hamm's ineffective
assistance of counsel claim on grounds not raised in the
briefs because, as a matter of law, that claim is not
properly before us. See Moody v. People,
159 P.3d 611, 615 (Colo. 2007) ( " [A]ppellate courts
have the discretion to affirm decisions . . . on any basis
for which there is a record sufficient to permit conclusions
of law, even though they may be on grounds other than those
relied upon by the trial court." ).
Governing Statute and Rule
[¶9]Section 18-1-410(1)(f)(II) and Crim.
P. 35(c)(1) bar Hamm's ineffective assistance claim
because Hamm did not file a direct appeal of his conviction
and sentence. Thus, the district court should not have
considered the claim.
[¶10] Section 18-1-410 sets forth the
circumstances under which a person convicted of a crime may
seek postconviction review of his sentence. Subsection (1) of
the statute allows a defendant who did not file an appeal to
move for postconviction review: " Notwithstanding the
fact that no review of a conviction of crime was sought by
appeal within the time prescribed therefor, or that a
judgment of conviction was affirmed upon appeal, every person
convicted of a crime is entitled as a matter of right to make
applications for postconviction review." § 18-1-410(1).
[¶11] Subsection (1)(f) of the statute
applies to postconviction motions premised on a "
significant change in the law." § 18-1-410(1)(f).
Subsection (1)(f)(I) authorizes postconviction motions on the
grounds that " there has been significant change in the
law, applied to the applicant's conviction or sentence,
allowing in the interests of justice retroactive application
of the changed legal standard." § 18-1-410(1)(f)(I).
[¶12] The next subsection of the statute
imposes conditions on postconviction motions based on a
" significant change in the law." A person
convicted of a crime is barred from arguing a "
significant change in the law" in a postconviction
motion if he " has not sought appeal of a conviction
within the time prescribed therefor or if a judgment of
conviction has been affirmed upon appeal." §
[¶13] Crim. P. 35(c)(1) contains similar
If, prior to filing for relief pursuant to this
paragraph (1), a person has sought appeal of a
conviction within the time prescribed therefor and if
judgment on that conviction has not then been affirmed upon
appeal, that person may file an application for
postconviction review upon the ground that there has been a
significant change in the law, applied to the
applicant's conviction or sentence, allowing in the
interests of justice retroactive application of the changed
Crim. P. 35(c)(1) (emphasis added).
[¶14] Therefore, a person may not seek
postconviction relief based on a " significant change in
the law" unless (a) he has filed a timely appeal and (b)
an appellate court has not affirmed his judgment of
Hamm Did Not File an Appeal and, Therefore, May Not Seek
Postconviction Relief Based on a " Significant Change in
[¶15] Hamm was convicted on the distribution
count on January 31, 2013, and stipulated to the thirty-year
sentence on September 30, 2013. Hamm filed his motion to
extend the deadline for an appeal in the district court on
October 21, 2013. The district court denied the motion,
however, because Hamm had filed it in the wrong court.
See C.A.R. 4(b)(1) (" [T]he appellate court may
. . . extend the time for filing a notice of appeal . . .
." ). The record contains no indication that Hamm ever
filed in this court a motion to extend the time to appeal. In
any event, Hamm never filed a direct appeal of his conviction
or sentence, which became final when he missed the deadline
to file a notice of appeal.
[¶16]Hamm filed the Petition two years
later, on October 11, 2015. Because he did not file an
appeal, he did not satisfy the conditions precedent for
seeking postconviction relief based on a " significant
change in the law," regardless of whether the Act
applies retroactively. § 18-1-410(1)(f)(II); Crim. P.
35(c)(1) ; see People v. Stellabotte,
2018 CO 66, ¶ 33, 421 P.3d 174, 181 (" Subsection
18-1-410(1)(f)(I) provides for retroactive application of
significant change in the law to a defendant's conviction
or sentence but, under subsection (II), during only direct
appeal, before the conviction is final. Thus, it applies only
to criminal prosecutions and during only a narrow procedural
timeframe." ); Glazier v. People, 193 Colo.
268, 269, 565 P.2d 935, 936 (1977) (" As we have
repeatedly held, a defendant is entitled to the benefits of
amendatory legislation when relief is sought before finality
has attached to the judgment of conviction." );
People v. Thomas, 185 Colo. 395, 398, 525 P.2d 1136,
1138 (1974) (holding that where the defendant sought
postconviction relief during the pendency of his appeal,
" amendatory legislation mitigating the penalties for
crimes should be applied to any case which has not received
final judgment" ).
[¶17] For this reason, we affirm the
district court's denial of Hamm's request for a
hearing on ...